《大元通制》渊源考辨

由于人们对《元史·刑法志》一段简要而含混记述的误读,造成了法律史上的一桩“悬案”,即《大元通制》渊源之谜。本文从追溯元代前期艰难的修律立法历程入手,结合当时社会政治生态环境,对《大元通制》的本原作了详尽的探索。《大元通制》是世祖以降数十年修订律书的摸索与奋斗的产物,而仁宗“延祜律书草案”则是《大元通制》凭据的直接蓝本。本文对《大元通制》“难产”的缘由进行了剖析,认为延(?)、至治年间,仗恃兴圣太后权势的“后党”保守派与皇帝为首的“帝党”改革派之间激烈政争,是《大元通制》难产的主要原因。

Investigation and Differentiation of the Origin of the Legal System of the Great Yuan Empire

Because of misinterpretation of a terse concise but ambiguous excerpt in the Record of Criminal Law of the History of the Yuan Dynasty, a controversy in the legal history was resulted in, that is, the enigma of the origin of the Legal System of the Great Yuan Empire. This paper, based on the earlier process of arduous amendment and legislator, and also combines with social, political and living surroundings of that time, makes a thorough exploration on the origin of the Legal System of the Great Yuan Empire. The Legal System of the Great Yuan Empire was the outcome of Emperor Shizu' s decades' code - revising exploration and hard work, while the Draft of Yanyou Code was the direct original version on which the Legal System of the Great Yuan Empire based. This paper, which also analyses the reason of the difficulty in fulfilling the book namely, holds the viewpoint that the main reason of the difficulty in fulfilling of the Legal System of the Great Yuan Empire is the fierce political conflict between "Hou Dang" , a conservative section backed Empress Dowager Xingsheng, and "Di Dang"a reformative section headed by the Emperor.